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The New Criterion

Quite simply, the best cultural review in the world
- John O’Sullivan

Features

May 2002

Adversary jurisprudence

by Robert Bork

The ninth in a series titled “The survival of culture.”

The outcome of the struggle for control of the courts will determine the future of the rule of law and hence the prospects for the survival of traditional American culture. Behavior and language are now routine that not long ago would have met not only with social disapproval but also with legal sanctions. No doubt public attitudes were changing in any event, but they could not have moved so far and so fast if the courts had not weakened moral curbs and made legal restraint impossible. In destroying those barriers, … the Court has also fostered the immoral attitude that the individual will must be completely emancipated, no matter what the cost. Judicial activism … properly refers to the practice of some judges of enunciating principles and reaching conclusions that cannot plausibly be derived from the Constitution they purport to be interpreting. Activism consists in the assumption by the judiciary of powers not entrusted to it by the document which alone justifies its authority. The results are twofold: the erosion of democracy and the movement of the culture in a left-liberal direction. American law concerning freedom of speech … has been deformed by the almost irrebuttable presumption of unswerving rationality and freedom of individual choice embodied in Justice Oliver Wendell Holmes’s foolish and dangerous metaphor of the marketplace of ideas. There will … always be a gaggle of professors eager to testify that the most blatant pornography is actually a profound parable about the horrors of capitalism or the oppressiveness of bourgeois culture. It is not too much to say that the suffocating vulgarity of popular culture is in large measure the work of the Court. The Court did not create vulgarity, but it defeated attempts of communities to contain and minimize vulgarity. The Court’s deformation of the Speech Clause is outdone by its treatment of religion… . The power of religion to prevent and forbid is greatly attenuated and no little part of that decline is due to the Supreme Court’s endorsement of intellectual class secularism. Equality can be a means of breaking down traditional authority so that a new morality may be imposed. Though equal rights authoritarians demand nonjudgmentalism, they are very judgmental about traditionalists who oppose them. Justice William O. Douglas reasoned that various provisions of the Bill of Rights protected aspects of privacy. That being so, the emanations from such rights formed a penumbra from which a larger, unmentioned right of privacy could be deduced. That reasoning assumes that the framers and ratifiers of the Bill of Rights had a sense that there was a more encompassing right which they were unable to articulate and so had to settle for a list of specific guarantees. Since the Court is a central prize in the culture war, the fight to control it is political, engaging the White House and the Senate. There is, however, an equally important arena consisting of academic lawyers and pressure groups. These are heavily on the side of the emancipationists or liberals. Their tactic is frequently to insist, contrary to obvious reality, that the Supreme Court is dominated by conservatives. When liberals say “balance” they mean a Court that will rewrite the Constitution to make it ever more liberal. The left wing has discovered an effective tactic of labeling any conventional jurist an ideologue with a right-wing agenda and hence “outside the mainstream.” In the last three decades, as the students of the Sixties became professors, law scholarship has become increasingly left wing and intellectually disordered. Faculties are less and less engaged in scholarship that might conceivably be of use to practitioners and judges or to the reform of legal doctrine. Constitutions speak for permanent values and judges are supposed to give those values voice. Instead, representatives of our judiciary are all too often, and increasingly, exemplars of disrespect for the rule of law. Born in Europe, central to the American founding, and fundamental to Western civilization, the ideal of the rule of law no longer commands much more than verbal allegiance. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by law.
—Oliver Wendell Holmes Every law or rule of conduct must, whether its author perceives the fact or not, lay down or rest upon some general principle, and must therefore, if it succeeds in attaining its end, commend the principle to public attention and imitation and thus affect legislative opinion.
—A. V. Dicey The nightmare of the American intellectual is that the control of public policy should fall into the hands of the American people. … [P]olicymaking by the justices of the Supreme Court, intellectuals all, in the name of the Constitution, is the only way in which this can be prevented.
—Lino Graglia

Until recently, the name of Charles Pickering was hardly a household word. That changed the moment President Bush nominated the obscure federal trial judge for a seat on a court of appeals. Overnight, Judge Pickering became the latest casualty of the cultural wars. If there was no compelling reason that Pickering should have been elevated to an appeals court, there was certainly no good reason why he should not have been. Candidates no better qualified have in the past been routinely confirmed by the Senate. He was not. Instead, in a scenario that has become depressingly familiar, he was vilified by the media and anti-Bush partisans. His candidacy was scuttled by a party-line vote in the Judiciary Committee, which denied him consideration by the full Senate where he probably would have been confirmed.

What was surprising about the unfortunate Pickering’s travails was the brutality of the campaign against him. We have, alas, become accustomed to such battles over Supreme Court nominees. Until now, however, such battles had not extended to nominations to the lower courts. The immediate explanation, of course, was that the Democratic Party and its allies—People for the American Way, NOW, NARAL, and other left-wing groups—immolated Pickering to warn George Bush that they had the votes in the Committee to defeat any Supreme Court nominees who bore the slightest resemblance to Justices Antonin Scalia and Clarence Thomas.

The political struggle for control of the courts has become open and savage precisely because it is a major part of the war in our culture, a battle for dominance between opposed moral visions of our future. In that battle, Supreme Court Justices are the major prize, but appeals court nominees are also important because those courts are final for all but the tiny sliver of cases accepted by the Supreme Court for review.

The outcome of the struggle for control of the courts will determine the future of the rule of law and hence the prospects for the survival of traditional American culture. The culture war has been best described by James Davison Hunter, who first adapted the term to the American context. On one side are traditionalists who accord a presumption of legitimacy and worth to longstanding sources of cultural authority, sources whose strength is eroded or whose continued existence is brought into doubt by the clamor for liberation of the individual. On the other side are the emancipationists, who are highly critical of constituted authorities and institutions and wish to liberate the individual will from such restraints. That is a process that must have limits if a coherent culture is to survive. Our courts, however, continually test and frequently transgress those limits. The disagreement is not merely philosophical; it is intensely political and generates furious passions. It may be roughly summarized as a battle between the ethos of the student radicals of the Sixties and that of adherence to bourgeois virtues.

The emancipationist party is led by—in fact it almost entirely consists of—intellectuals, a group that, as Friedrich Hayek noted, “has long been characterized by disillusionment with [the West’s] principles, disparagement of its achievements, and exclusive concern with the creation of ‘better worlds.’” This destructive utopianism was not too serious as long as intellectuals were an ineffective minority, but they increased in size and influence after World War II, and in the Sixties their values came to predominate.

We are accustomed to manifestations of the liberationist impulse in the institutions controlled by intellectuals: the press (print and electronic), universities, Hollywood, mainline churches, foundations, and other “elite” institutions that engage in shaping or trying to shape our attitudes. Most people, however, do not think of the judiciary—insofar as they think about the judiciary at all—in the same way. They should. Television and motion pictures powerfully influence the direction of our culture but they do not claim to speak with the authority of the Constitution, nor do they possess the judges’ power to coerce. In truth, television and motion pictures would not have the unfortunate cultural impact they do if courts had not broken the restraints of enacted law. Behavior and language are now routine that not long ago would have met not only with social disapproval but also with legal sanctions. No doubt public attitudes were changing in any event, but they could not have moved so far and so fast if the courts had not weakened moral curbs and made legal restraint impossible.

As many thinkers have noted, the Enlightenment has had a dark as well as a cheerful legacy. If it bequeathed us greater freedom, it also brought with it an attenuated sense of tradition and weaker attachments to communal, familial, and religious values. Although these disruptions accelerated in the 1960s, their real beginning was the growing view that what one did with one’s life was almost entirely a matter of personal choice, owing little to the wishes of family, religion, or community. Today, this disintegration of the culture, and hence of the society, goes by the apparently respectable name of libertarianism, a catchword rather than a philosophy, and one with very unhappy consequences.

To say that this is a general cultural movement that we do not know how to stop or reverse is not to absolve activist courts from their responsibility in causing the damage we see about us. The courts, and especially the Supreme Court, have led the way to cultural dissolution by breaking down the legal barriers that restrain radical individualism. And, in destroying those barriers, an enterprise wicked enough in itself, the Court has also fostered the immoral attitude that the individual will must be completely emancipated, no matter what the cost. The judiciary has in large measure become the enemy of traditional culture. This enterprise of the law deserves the title of adversary jurisprudence.

The political manifestation of the culture war was the 1972 takeover of the Democratic Party by the McGovernites. To put the matter crudely, but by no means inaccurately, since that time the Democratic Party has come to represent the values of the Sixties, while the Republican Party, insofar as it has a pulse, tends to a traditionalist stance on social issues. If it seems odd to refer to politicians as intellectuals, it must be remembered that the term does not signify any particular skill at intellectual work. Ted Turner, Cornel West, and Barbra Streisand qualify; you get the idea. The intelligentsia are influential beyond their numbers because they control the institutions that shape attitudes, ration information, and offer prestige and comfortable lives to the young they recruit. The New York Times, Harvard Law School, the Ford Foundation, and NBC’s nightly news are a few of many examples.

The performance of the Supreme Court over the past half century follows the agenda of the intelligentsia. The Court majority’s spirit is activist and emancipationist: it liberates the individual will in constitutional issues of speech, religion, abortion, sexuality, welfare, public education, and much else. This is what liberalism has become in our time. Judicial activism, a term of abuse flung about freely without much thought, properly refers to the practice of some judges of enunciating principles and reaching conclusions that cannot plausibly be derived from the Constitution they purport to be interpreting. Activism consists in the assumption by the judiciary of powers not entrusted to it by the document which alone justifies its authority. The results are twofold: the erosion of democracy and the movement of the culture in a left-liberal direction. If the text, history, and structure of the Constitution no longer guide and confine the judge, he has nowhere to look but to his own ideas of justice, and these are likely to be formed by the assumptions of the intellectualized elites he has known for most of his life and whose approval he very much wants. When the judge’s views are claimed, however implausibly, to be based on the Constitution, the legislators and the public are helpless. For better or for worse, on crucial issues, an activist Court, not the Constitution, leads and shapes the culture.

At the apex of all our courts, federal and state, sits the Supreme Court of the United States. Its rulings are not merely final but are highly visible and influential statements of the principles our most fundamental document is said, not always credibly, to enshrine for our governance and contemplation. Though these principles are the same as those on the intellectual class agenda, it must be said that there is more diversity of opinion on the Court than there is in the faculty lounges of the law schools. That fact makes the liberal Left anxious and determined to control every new appointment. So far they have been successful. No matter how many Justices are appointed by Republican presidents, the works of the Warren Court and the victories of the ACLU are not reversed.

The small sampling of cases that can be discussed here nevertheless constitutes a cornucopia of judicial activism: no court could arrive at such results by reasoning from the text, history, or structure of the Constitution. Here, as elsewhere in our national life, attitude trumps reason.

The First Amendment to the United States Constitution is a major focal point of the culture war.

Consider freedom of speech. The First Amendment to the Constitution, dealing with speech and religion, is central to America’s understanding of itself and its freedoms. The first words of the Amendment are: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press.”

The Court has since extended these prohibitions from Congress to all federal, state, and local governments. But that is of secondary importance to the explosive expansion it has given the words “speech” and “establishment.” It is indicative both of the Court’s radically altered importance in cultural matters and of the late rise of the intellectual class that neither the Speech Clause nor the Establishment Clause, adopted in 1791, occasioned Supreme Court review of official acts until well into the twentieth century.

American law concerning freedom of speech, and perhaps much wider areas of constitutional law, has been deformed by the almost irrebuttable presumption of unswerving rationality and freedom of individual choice embodied in Justice Oliver Wendell Holmes’s foolish and dangerous metaphor of the marketplace of ideas. That notion made its debut in 1919 in Holmes’s much-lauded dissent in Abrams v. United States. The Court majority upheld the convictions under the Espionage Act of Russian immigrants, self-proclaimed “revolutionists” who distributed circulars in New York City advocating a general strike and urging that workers stop producing ammunition to be used against the revolutionaries in Russia. The theory of the prosecution was that the strike, though not so intended, would harm the war effort against Germany. Holmes would have set aside the convictions on statutory grounds, which would have been entirely proper, but he went on to introduce into the First Amendment an unfortunate assumption:

[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the test of truth is the power of thought to get itself accepted in the competition of the market.

Holmes certainly knew that horrible ideas are often accepted in the market. The market for ideas has few of the self-correcting features of the market for goods and services. When he wrote, Holmes of course knew nothing of Soviet Communism or German Naziism, but his own experience in the Civil War demonstrated that when ideas differ sharply enough, the truth of one or the other is not settled in the competition of the market but in the slaughter of the battlefield. Nevertheless, the compelling quality of his prose and the attractiveness to intellectuals of the supposed ultimate supremacy of good ideas has served, down to our own day, to make his absurd notion dominant in First Amendment jurisprudence and, more remotely, in other fields of constitutional law.

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The metaphor of the marketplace not only assumes the goodwill and rationality of most men who have to choose among the ideas offered, but also, by the nature of a market, the choices, desires, and gratifications of the individual are of first importance. Given that assumption, it is an easy step to the thought that no idea should be kept from the market. Individualism is placed above the welfare of the community, a theme that runs throughout constitutional law.

But Holmes, joined again by Brandeis, elevated that thought to incoherence. Gitlow v. New York (1925) upheld a conviction under a criminal anarchy statute for publishing a call for the violent overthrow of the government. “If in the long run [Holmes wrote in dissent] the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” This in a case where the defendant urged violent action by a minority to institute a dictatorship that would put a stop to free speech? What happened to the marketplace of ideas? Why, on Holmes’s reasoning, were the dominant forces of the community that enacted the criminal anarchy law not allowed to have their way? That they should, on his reasoning, must be the only meaning of free speech. There is an alarming frivolity in these dissents. “If in the long run the belief, let us say, in genocide is destined to be accepted by the dominant forces of the community, the only meaning of free speech is that it should be given its chance and have its way. Do we believe that?,” Alexander Bickel asked. “Do we accept it?” Funny little mustached men wearing raincoats stand on street corners preaching obviously crackpot notions that may one day become the policy of a nation. “Where nothing is unspeakable, nothing is undoable.”

The themes of the Holmes-Brandeis dissents were ready at hand for adoption by the intellectualized post-World War II Court. After some wavering, the essence of those dissents became the law in Brandenberg v. Ohio (1969). The Court there reversed the conviction under the Ohio Criminal Syndicalism statute of a Ku Klux Klan leader who made a speech threatening to blacks and Jews, ruling that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action.” To wait until violence is imminent, of course, is likely to wait too long to prevent it.

What benefits can such speech have in a country committed to representative democracy? The ideas involved, if such expostulations can be called ideas, could be offered in Holmes’s marketplace uncoupled from calls to violence. A nation that fears only violence but is otherwise indifferent to fundamental republican principles, as the Abrams and Gitlow dissents and Brandenberg would have it, is unlikely to show persistent determination in defending its culture.

Individualistic relativism appears even more clearly in cases dealing with vulgarity, pornography, and obscenity. The prime example is Cohen v. California (1971) which overturned a conviction for disorderly conduct of a man who entered a courthouse wearing a jacket bearing the words “F … the Draft” (without the ellipsis). The majority opinion by Justice Powell asked “How is one to distinguish this from any other offensive word?” and answered that no distinction could be made since “one man’s vulgarity is another’s lyric.” The Court would never dream of saying that one man’s armed robbery is another’s redistribution of wealth in pursuit of social justice. (Although, come to think of it, the Warren Court’s solicitude for criminals may have come close to that.)

Cohen was just the beginning. The following year the Court decided Rosenfeld v. New Jersey, Lewis v. New Orleans, and Brown v. Oklahoma. Rosenfeld addressed a school board meeting of about 150 people, including about forty children, and on four occasions used the adjective “motherf … ing” to describe the teachers, the school board, the town, and the United States. Lewis shouted the same epithet at police officers who were arresting her son. Brown used the same language in a meeting in a university chapel. None of the convictions—for disorderly conduct, breach of the peace, and use of obscene language in a public place—was allowed to stand. The relativism of these decisions seems to reflect a loss of will to maintain conventional standards. The Court refused to allow punishment for the same obscene and assaultive speech that was tolerated by supine university faculties and administrators in the late 1960s and early 1970s. When the faculties collapsed, the universities were corrupted; when the Supreme Court gave way, the national culture was defiled. Now, of course, such language is routine on television and in motion pictures.

Pervasive vulgarity was guaranteed by Miller v. California (1973) which laid down the conditions under which a state could regulate obscenity. That test is a maze whose center cannot be reached. The most damaging condition is that the work, taken as a whole, must lack serious literary, artistic, political, or scientific value. How can a jury find that anything lacks serious artistic value when museums, our cultural authorities on what is art, exhibit Robert Mapplethorpe’s photograph of one man urinating in the mouth of another, a picture of the Virgin Mary spattered with dung, and jars of excrement as works of art? There will, in any event, always be a gaggle of professors eager to testify that the most blatant pornography is actually a profound parable about the horrors of capitalism or the oppressiveness of bourgeois culture.

The themes the Court had been developing reached a crescendo of sorts in United States v. Playboy Entertainment Group, Inc. (2000). The decision held unconstitutional a congressional statute that required cable television channels “primarily dedicated to sexually-oriented programming” to limit their transmission to hours when children are unlikely to be viewing. The Court majority found the law a restriction on the content of speech that was not justified because there appeared to be less restrictive methods of protecting children.

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The Justices, equating sex and speech, said, “Basic speech principles are at stake in this case.” That is a peculiar view of fundamentals since Playboy advertised, as Justice Scalia pointed out in dissent, that its channel depicted such things as “female masturbation/external,” “girl/girl sex,” and “oral sex/cunnilingus.” Most of the speech in such entertainment probably consisted of simulated moans of ecstasy which the females are required to utter in order to excite viewers.

The legislation and the Court both focused on the danger that children would be exposed to erotic sounds or pictures. The Court’s discussion centered upon the pleasures of adults. No weight was given to the interest of society in preserving some vestige of a moral tone. “Where the designed benefit of a content-based speech restriction is to shield the sensibilities of listeners, the general rule is that the right of expression prevails, even where no less restrictive alternative exists. We are expected to protect our own sensibilities ‘simply by averting [our] eyes.’” Many of the people around us will not avert their eyes, and that fact will certainly produce a moral and aesthetic environment which it is impossible to ignore. We are forced to live in an increasingly ugly society.

Indeed, the Court majority refuted its own avert-your-eyes solution when it said: “It is through speech that our convictions and beliefs are influenced, expressed, and tested. It is through speech that we bring those beliefs to bear on Government and society. It is through speech that our personalities are formed and expressed.” Try substituting “consuming pornography” or “watching female masturbation/external” for the word “speech” in that passage and see how persuasive it remains.

Apparently aware that this line of cases has been criticized, the majority opinion essays a rebuttal:

When a student first encounters our free speech jurisprudence, he or she might think it is influenced by the philosophy that one idea is as good as any other, and that in art and literature objective standards of style, taste, decorum, beauty, and esthetics are deemed by the Constitution to be inappropriate, indeed unattainable. Quite the opposite is true. The Constitution no more enforces a relativistic philosophy or moral nihilism than it does any other point of view. The Constitution exists precisely so that opinions and judgments, including esthetic and moral judgments about art and literature, can be formed, tested, and expressed. What the Constitution says is that these judgments are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.

In a word, what the Constitution says, as interpreted by today’s Court, is that one idea is as good as another so far as the law is concerned; only the omnipotent individual may judge. A majority may not enact its belief, apparently self-evidently wrongheaded, that the production and consumption of obscenity and pornography work social harms. That is a relativistic philosophy or moral nihilism, if anything is. And it is not the Constitution’s philosophy; it is the Court’s.

It is not too much to say that the suffocating vulgarity of popular culture is in large measure the work of the Court. The Court did not create vulgarity, but it defeated attempts of communities to contain and minimize vulgarity. Base instincts are always present in humans, but better instincts attempt, through law as well as moral disapproval, to suppress pornography, obscenity, and vulgarity. When the law is declared unfit to survive, not only are base instincts freed, they are also validated.

The triumph of the individual over the community advanced in a new direction in Texas v. Johnson (1989), a five-to-four decision invalidating federal law and the laws of forty-eight states prohibiting the physical desecration or defilement of the American flag. While chanting insults to the United States, Johnson burned the flag in public to show contempt for this country. He was not prosecuted for his words but only for the burning. Equating an expressive act with speech, itself an extremely dubious proposition, Justice Brennan said the government could not prohibit the expression of an idea on the grounds of offensiveness. Unifying symbols are essential to an increasingly divided community, but the strain of individualism in its precedents left the Court majority unable to accept that fact.

The perversion of the First Amendment took the opposite tack when legislative majorities cut at the heart of the Speech Clause by diminishing and biasing political speech.

Buckley v. Valeo (1976) upheld portions of the Federal Election Campaign Act that severely limited individual contributions to political campaigns on the theory that large contributions may lead to the corruption of politics or may create a public impression of corruption. Had limits so severe then been in effect they would have made impossible Eugene McCarthy’s primary challenge that led Lyndon Johnson not to run for re-election. Yet freedom of political speech is conceded to lie at the core of the Speech Clause.

Any hope that Buckley was an aberration that the appointment of new justices would cure was dashed by Nixon v. Shrink Missouri Government PAC (2000). Missouri law set limits on campaign contributions for state elections that were considerably more severe than the limits set by the federal law. The Court once more held that corruption or the possible appearance of corruption was an adequate ground to regulate contributions. Justice Stevens concurred, insisting on “one simple point. Money is property; it is not speech.” A soapbox is also property, not speech, but the speech of an orator in Hyde Park would be much less effective without it. Television equipment, paid for by contributions, is also property, but speech could not reach a mass audience without it. Justice Breyer’s concurrence, while conceding that money enables speech, argued that limiting the size of the largest contributions serves “to democratize the influence that money itself may bring to bear upon the electoral process.” Real democratization would justify restrictions upon media commentary that is obviously one-sided in support of liberal candidates and policies. Had the speech been pornographic it would have gained greater protection. Those, including the President, who are counting on the Supreme Court to rescue the political process from the excesses of the new campaign finance law may be unpleasantly surprised.

The Court’s deformation of the Speech Clause is outdone by its treatment of religion. Tocqueville saw that religion should be “considered as the first of [the Americans’] political institutions; for if it does not give them the taste for freedom, it singularly facilitates their use of it” because it “prevents them from conceiving everything and forbids them to dare everything.” That was then. Now the restraints for which Tocqueville praised religion are seen as intolerable limitations on the individual will. The power of religion to prevent and forbid is greatly attenuated and no little part of that decline is due to the Supreme Court’s endorsement of intellectual class secularism. This decline, in turn, bears directly upon the Court’s interpretation of the freedom of speech, since in that area there is no longer much that cannot be conceived and dared.

The Establishment Clause has spawned a welter of cases, but it is necessary to examine only a few to see the themes that run through them. Engel v. Vitale (1962) was the first case dealing with a nondenominational prayer initiated by New York school officials. Officially sanctioned prayer had long been a feature of public schooling, but now the Court, perceiving a forbidden establishment of religion, started down a path leading to the official equality of religion and irreligion. In truth, irreligion seems the preferred constitutional value. A year later, Abington School District v. Schempp (1963) invalidated a Pennsylvania law requiring that the school day begin with a reading of verses from the Bible and student recitation of the Lord’s Prayer. Although any student could be excused upon the written request of his parent, the Court said “the breach of [constitutional] neutrality that is today a trickling stream may all too soon become a raging torrent.” That was extravagant hyperbole. In all of American constitutional history, the trickling stream has never achieved the status of even a sluggish creek.

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The Court said the state must maintain neutrality by “neither aiding nor opposing religion.” The long-standing policy, dating back to George Washington’s presidency and the first Congress, that the state should favor religion in general was ignored. Faith and atheism may seem now to stand on equal footing, but only faith is barred from official recognition. That may be appealing to many moderns, but it certainly was not the view of those who wrote, the Congress that proposed, and the states that ratified the First Amendment.

So drastic has the antagonism to religion become that Wallace v. Jaffree (1985) struck down an Alabama statute permitting one minute of silent prayer or meditation in public schools. No one would know whether a student was praying, meditating, or daydreaming. The difficulty, according to Justice Stevens, was that by adding the option of silent prayer, the state characterized prayer as a favored practice.

The Court’s treatment of religion became even more draconian in Lee v. Weisman (1992) which held unconstitutional a rabbi’s recitation of a nonsectarian prayer at a middle-school graduation ceremony. Justice Souter disparaged evidence that after adoption of the First Amendment the founding generation encouraged public support for religion, saying that such acts “prove only that public officials, no matter when they serve, can turn a blind eye to constitutional principle.” That is an extraordinary dismissal of the evidence that the same Congress that proposed the no-establishment principle also hired chaplains for both Houses and the armed forces, and successfully called upon presidents to declare national days of thanksgiving to God. History is in fact quite clear that the founding generation thought the state could and should encourage religion. The prayer was harmful to plaintiff Deborah Weisman, the Court said, because public or peer pressure might cause her to stand or at least maintain a respectful silence during its reading. She could constitutionally be required to stand or remain silent during the reading of any other material—the Communist Manifesto, say, or Darwinian theory—so long as it had no hint of religious content. But then such philosophical trickles which have upon occasion become raging torrents are not religious, at least not in the conventional sense.

One of the most extreme examples of anti-religious animus was presented by Board of Education of Kiryas Joel Village School District v. Grumet (1994). The Satmar Hasidim, who practiced a strict form of Judaism, established a village that excluded all but Satmars. Their children were educated in private religious schools. Federal law entitled handicapped children “the deaf, mentally retarded, and those suffering from various physical, mental, or emotional disorders” to special education services, but a Supreme Court ruling forced them to attend public schools outside the village. Their parents withdrew the children because of “the panic, fear and trauma [the children] suffered in leaving their own community and being with people whose ways were so different.” The State of New York responded by constituting the village a separate school district to enable it to provide for itself the special services needed.

The Supreme Court, however, in an opinion by Justice Souter, found this to be a forbidden establishment of religion. Justice Stevens, joined by Blackmun and Kennedy, concurred, offering the advice that “the State could have taken steps to alleviate the children’s fear by teaching their schoolmates to be tolerant and respectful of Satmar customs.” Teaching grade schoolers to be tolerant and respectful of handicapped, strangely dressed classmates who spoke Yiddish and practiced what the classmates would see as a weird religion would be a Sisyphean task at best. The Justices must have forgotten how cruel children can be to those they regard as even mildly eccentric.

“The isolation of these children,” the concurrence went on to say, “while it may protect them from ‘panic, fear and trauma,’ also unquestionably increased the likelihood that they would remain within the fold, faithful adherents of their parents’ religious faith.” Why families’ freedom to raise their children as they think best should be suspect and what relevance the observation had to the Establishment Clause went unexplained. The concurrence spoke for social atomization.

Justice Scalia, in a dissent joined by Chief Justice Rehnquist and Justice Thomas, wrote that the Grand Rebbe, who brought the Satmars from Europe to escape religious persecution, would be “astounded” to learn that the sect was so powerful as to have become an “establishment” of New York State, and the Founding Fathers would be “astonished” that the Establishment Clause was used to prohibit a characteristically American accommodation of the religious practices of a tiny minority sect. “I, however,” Scalia continued, “am not surprised. Once this Court has abandoned text and history as guides, nothing prevents it from calling religious toleration the establishment of religion.” (Actually, once text and history are jettisoned, nothing prevents the Court from doing anything it chooses with any part of the Constitution.) Souter inadvertently conceded the point by rebuking Scalia for “his inability to accept the fact that this Court has long held that the First Amendment reaches more than classic, eighteenth-century establishments.” Unfortunately for that riposte, the Establishment Clause is a product of the eighteenth century.

The same radical individualism determined the result in Santa Fe Independent School District v. Doe (2000). The school district authorized two student elections, one to decide whether invocations, messages, or statements should be delivered at home football games and a second to select a student to deliver them. The Court held the school district’s policy a forbidden establishment of religion. Dislike of majority rule surfaced in Justice Stevens’s opinion for the majority: “[T]his student election does nothing to protect minority views but rather places the students who hold such views at the mercy of the majority. School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents ‘that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.’” Religious speech must have extraordinary political power. All of us have heard actual political speech with which we heartily disagreed without feeling any the less members of the political community. But where religion is concerned, even imaginary discomfort to a hypothetical individual overrides the reasonable desires of the community.

 

There is also the issue of feminism. United States v. Virginia (1996) held 7–1 that Virginia Military Institute, which is supported by the state, could not, under the Equal Protection Clause of the Fourteenth Amendment, remain an all-male school. The school was founded in 1839. The Fourteenth Amendment, designed to protect the newly freed slaves, was not ratified until 1868. Nobody at the time suggested that the Amendment banned single-sex education. In fact, it was not until 1971, over a hundred years later, that the Court first applied the Amendment to an irrational distinction between men and women. The ratifiers would have been aghast that a military school could not be all-male.

VMI featured strict discipline, hard physical performance, and an absolute lack of privacy, something, in fact, very like Marine boot camp. The admission of women required modifications, as they have in every military college. VMI’s distinctive character, it was pointed out, would be lost. The Court attached no weight to this prospect.

q8 The Court insisted on the abstract equality of men and women in all things, undeterred by the historical meaning of the Equal Protection Clause, the value of well over a century of unquestioned excellence and tradition, and most certainly not by the heretical thought that there might be some areas of life suited to masculinity that feminism should not be permitted to destroy. Masculinity is a highly suspect idea in today’s elite culture and it cannot, therefore, be expected to find lodgement in the Supreme Court’s version of constitutional law.

There is no limit to what the Court can do with the Equal Protection Clause. As Justice Scalia said in dissent, the “current equal-protection jurisprudence … regards this Court as free to evaluate everything under the sun.” That is exactly right. Every law makes a distinction between lawful and unlawful behavior. Every law, therefore, produces inequality because some conduct is allowed while other conduct is forbidden. The Court’s equal protection jurisprudence thus allows scrutiny of all law to see if it meets the Justices’ views of appropriate policy.

It might appear that the Court’s theme of equality is contrary to the theme of emancipated individualism, but that is a misunderstanding. Equality denies the right of the majority to impose standards that require some individuals to desist from activities they enjoy. When the clause is applied to erase such distinctions, the individual is liberated, even if we think he ought not to be. Emancipation of the will is then quite selective. One is reminded of the folks who deny the existence of any objective truth or moral standard even while fiercely imposing their truths on others. They are not in fact nihilists, since they clearly believe in something, even if it is only the protection of their own prerogatives. Equality can be a means of breaking down traditional authority so that a new morality may be imposed. Though equal rights authoritarians demand nonjudgmentalism, they are very judgmental about traditionalists who oppose them. The emancipation of the individual will turns out to be about power.

The intelligentsia are not through with VMI. The college has a tradition of a “brief, nonsectarian, inclusive blessing” before the evening meal. The ACLU persuaded a district court to prohibit even that. VMI’s superintendent said, no doubt pensively, “Hearing a brief prayer before supper is no more the establishment of religion than the singing of ‘God Bless America.’” True, but he shouldn’t have given the ACLU any ideas for an additional lawsuit.

The Court’s intervention has also been disruptive in the matter of sexuality. Much of the Court’s activism is concerned with sexuality as the abortion cases Roe v. Wade (1973), Planned Parenthood v. Casey (1992), and Stenberg v. Carhart (2000) make clear. The chosen instrument in these cases was the Due Process Clause of the Fourteenth Amendment, which requires that no one be deprived of life, liberty, or property without due process of law. The language obviously requires only fair procedures in the application of substantive law. But in Dred Scott v. Sanford, a 1857 decision, Chief Justice Roger Taney transformed the identical Due Process Clause of the Fifth Amendment to require that statutes have substantive meanings which judges approve. He and a majority of the Court did not approve of a federal statute which, quite arguably, would have freed a slave taken by his owner to territory where slavery was forbidden. Taney wrote that depriving a man of his property, regardless of procedural regularity, could hardly be called due process. “Substantive due process,” an oxymoron, was born.

Regardless of the shame in which it was conceived, and its internal contradiction, substantive due process has proved too valuable for judicial activism to be given up. In 1965, Griswold v. Connecticut gave birth to the Court-invented and undefined “right of privacy” which in turn spawned Roe v. Wade, a case which, without even a pretense of legal reasoning, announced a right to abortion. In an opinion of just over fifty-one pages, Justice Harry Blackmun surveyed such subjects as the view of abortion taken in the Persian Empire, the English common law, and by the American Medical Association, before announcing without further ado that the right of privacy was “broad enough” to cover a right to abortion. In Planned Parenthood v. Casey, the concurring opinion of three Justices, which created a majority to sustain a somewhat modified right to abortion, fashioned a right to “personal dignity and autonomy”: “At the heart of liberty”—runs the by-now famous “mystery passage”—“is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Though the liberty to be protected is left entirely unclear by this fogbound rhetoric, the mood is certainly one of radical individualism. The three-justice opinion simply refuses to explain what it is talking about, just as Roe v. Wade did almost twenty years earlier.

Worse was to come. In Stenberg v. Carhart, the Court struck down a Nebraska statute banning partial birth abortions, a procedure in which a live baby is almost entirely removed from the mother, its skull pierced and its brain vacuumed out, before the carcass is taken from the birth canal. The procedure is morally indistinguishable from infanticide, but the Court majority held that an exception for cases in which the mother’s life was otherwise endangered was not sufficient; there must be an exception to preserve the mother’s health. Though it is never true that the mother’s health would be adversely affected unless a partial birth abortion were performed, the ruling means that such abortions cannot be banned at all. There will always be an abortionist willing to certify that the procedure is essential to health.

In view of the territory the Court has claimed, it is worth examining the title deed composed in the Griswold decision. At issue was an ancient and unenforced statute prohibiting the use of contraceptives. Justice William O. Douglas reasoned that various provisions of the Bill of Rights protected aspects of privacy. That being so, the emanations from such rights formed a penumbra from which a larger, unmentioned right of privacy could be deduced. That reasoning assumes that the framers and ratifiers of the Bill of Rights had a sense that there was a more encompassing right which they were unable to articulate and so had to settle for a list of specific guarantees. In this view, the Court must finish the drafting by discerning a meaning the founders could not. The word “hubris” comes to mind. Bogus as it was, Douglas’s sleight of hand seemed harmless, but it became the rhetorical cover for the far more serious decisions that followed. It is on that bastardized version of constitutional reasoning that the entire edifice of so-called “reproductive rights” rests.

The radical individualism of the abortion cases has offshoots. In Eisenstadt v. Baird (1972), the Court moved beyond the rationale of Griswold, which purported to rest upon the marriage relationship, to decide that the same rationale must apply to the distribution of contraceptives to unmarried people. Justice William Brennan announced that “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

q13 It would be quibbling to point out that the right of privacy does not, in fact, mean anything, except what a majority of the Court wants it to mean on any given day. There was, of course, no explanation why the law in question was an “unwarranted” intrusion. The point to notice is that, once more, individualism triumphed over majority morality.

The Court’s concern with sexuality has taken it into the subject of homosexual behavior. Justice Harry Blackmun’s dissenting opinion in Bowers v. Hardwick (1986) is perhaps the leading example of judicial insistence upon an individualism so unconfined as to be useless for any practical purpose other than rhetorical bludgeoning. The majority upheld the constitutionality of making homosexual sodomy a criminal offense. Blackmun’s dissent dismissed the relevance of prior cases that seemed to confine the claimed “right of privacy” to the protection of the family: “We protect those rights not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual’s life.” This casual dismissal of the family, heretofore considered the most important unit of society, was in keeping with the modern attitudes of the intellectual class. On Blackmun’s reasoning, since the individual is all, no-fault divorce must be a constitutional right. But he immediately went on to make matters worse: “[T]he concept of privacy embodies ‘the moral fact that a person belongs to himself and not others nor to society as a whole.’” In short, the individual owes nothing to family, neighborhood, friends, nation, or anything outside his own skin, if that would interfere with his own pleasures. The four justices who signed the dissent cannot really have meant that, of course, but the fact that it could be written at all shows how far committed to individualism some of the justices have become.

Romer v. Evans (1996) took the next step and overruled Bowers without mentioning that case. By referendum the citizens of Colorado amended the state constitution to prevent localities from adding sexual orientation to the list of characteristics—race, sex, etc.—that were protected from private discrimination. The Court struck down the amendment on the theory that it treated homosexuals differently from other protected groups and thus violated the Equal Protection Clause. The rationale can best be described as incoherent. In order to gain legal immunity from private discrimination, homosexuals would have to seek it at the state level while the other groups would not. The fact is, of course, that all statewide or national laws require some groups to go beyond local government in order to change those laws. The Bill of Rights itself states principles that cannot be changed except by constitutional amendment. The most that can be made of Romer is that homosexuality is now a subject of special judicial solicitude. Individuals must be free to engage in homosexual behavior regardless of the community’s moral standards.

A number of observers predict that within a few years the Court will announce that the principle of equality requires a constitutional right to same-sex marriage. If Jane is free to marry John, why doesn’t equal protection require that Fred be equally able to marry John? Two state courts, of course, have already taken that step, to the intense displeasure of their citizens.

Since the Court is a central prize in the culture war, the fight to control it is political, engaging the White House and the Senate. There is, however, an equally important arena consisting of academic lawyers and pressure groups. These are heavily on the side of the emancipationists or liberals. Their tactic is frequently to insist, contrary to obvious reality, that the Supreme Court is dominated by conservatives.

Harvard’s Laurence Tribe, for example, calls the current Justices “the most activist in our history.” He said that “the astonishing weakness and vulnerability of the majority opinion in Bush v. Gore, and of the majority opinions in a number of other democracy-denying decisions in whose mold it was cast, are functions in part of the uniquely narrow spectrum of views … covered by the membership of the current Court.” It must come as a revelation to the Justices themselves to learn that Stevens and Souter advance almost the same views as Scalia and Thomas. Tribe describes the Court’s makeup as “four justices distinctly on the right, two moderate conservatives, a conservative moderate, two moderates, and no liberals.” Cass Sunstein of Chicago states that today’s Court has no liberals, which can only be true if he defines liberals as extreme radicals. Yale’s Bruce Ackerman urges the Senate not to confirm anyone nominated by George Bush.

It is only on the misunderstanding that the proper function of judges is to advance an ideological agenda that Abner Mikva, once a judge on the court on which I sat and later counsel to President Clinton, can urge the Senate not to confirm any Bush nominees to the Court because that might disturb the “delicate balance on the court on fundamental issues.” That “delicate balance” means a Court that is predominantly liberal. In his next sentence, Mikva clarifies the balance he praises by noting, with obvious approval, that the Warren Court, which was heavily liberal, made fundamental changes by substantial majorities. Balance is desirable only when a Republican president might tip the Court in a neutral direction. When liberals say “balance” they mean a Court that will rewrite the Constitution to make it ever more liberal.

It is hard not to think such remarks disingenuous. The Court as a whole lists heavily to the cultural left. A “narrow spectrum of views” hardly describes a Court that though it splits on important cultural issues, almost invariably comes down on the liberal side and whose members regularly denounce one another in heated terms. Tribe himself rebuts his narrow-spectrum description by saying that “the recurring 5–4 majority on the Court on these matters has become a genuine threat to our system of government.” How close votes threaten our system of government is unspecified. That Tribe is committed to the judicial activism he decries is demonstrated by his four (at last count) attempts to find an acceptable rationale for Roe v. Wade. The problem is not that he fails—success is impossible—but that he will not stop trying. Abortion must be a constitutional right even if no one can explain why.

The interest groups of the Left proceed by systematic lying about judicial nominees who adopt the traditional approach of interpreting the Constitution according to its actual meaning. In opposing Judge Pickering, Ralph Neas of the hard-left People for the American Way said, “Achieving ideological domination of the federal judiciary is the top goal of right-wing activists inside and outside the Bush administration.” The left wing has discovered an effective tactic of labeling any conventional jurist an ideologue with a right-wing agenda and hence “outside the mainstream.”

There is far more diversity of opinion on the Court than is to be found on law school faculties. In the last three decades, as the students of the Sixties became professors, law scholarship has become increasingly left wing and intellectually disordered. Faculties are less and less engaged in scholarship that might conceivably be of use to practitioners and judges or to the reform of legal doctrine. As Harry Edwards, formerly chief judge of the Court of Appeals for the District of Columbia Circuit, put it, “there is a growing disjunction between legal education and the legal profession,” which is reflected in the gradual replacement of older, traditional scholars by younger faculty whose work is often so theoretical as to be of little use outside the coterie of like-minded professors who engage in impractical discourse. The division, Edwards says, “is permeated by rancor, contempt and ill will.” The newer scholarship is politically motivated: “Many, although not all, of the legal theorists would like to bring about a radical transformation of society. In many cases, their work amounts to an attack on classical liberalism, which they would like to see replaced with a philosophical or political theory that will lead to a much more egalitarian society.”

Professor Edgar Hahn, a professor of jurisprudence at Case Western Reserve University, reports, “Reading hundreds of articles in researching a book on legal scholarship confirms that politically correct writing appears with increasing frequency.”

In the university community, he writes, political correctness “is associated with language modification, oppression studies, race and gender victimization, rejection of the white male canon,” which it sees as a culture of “objectivity and rationality.” This began with the critical legal studies movement which attempted to deconstruct the intellectual foundations of existing law and traditional legal scholarship, without, however, indicating what might be substituted. A liberal professor states that “critical legal studies is a political location for a group of people on the Left who share the project of supporting and extending the domain of the Left in the legal academy.” Hahn says that the advocates of political correctness now come from “Critical Race theorists, composed of Blacks and females, feminists, plus the remnants of the Critical Legal Studies movement.” Hahn continued: “One of the more esteemed techniques is the use of personal experiences to convey the emotion and agony of persevering in an alien environment of patriarchy, hierarchy, and objectification.” Thus some work of “scholars” consists of storytelling. Their narratives are published in law reviews and have been sufficient for the award of tenure. This intellectual collapse is now praised as “postmodern jurisprudence,” a term which itself ought to be an embarrassment to the legal academics involved.

There have emerged almost innumerable competing theories of how the Constitution should be “interpreted.” None of these has proved satisfactory to the competing theorists so that now we have reached a state of advanced nihilism in which articles and books are written on the impossibility of all normative theories of constitutional law or the “misguided quest for constitutional foundations.” Were these counsels of despair accurate, the only honest conclusion would be that since they cannot make sense of what they are doing, judges should abandon judicial review altogether. That conclusion is never drawn, however. Constitutional law is about power, and professors will never relinquish their bit of that power.

If the legal academy is hopeless, one might suppose that at least some Justices would by now have undertaken a justification for their habitual departures from any conceivable meaning of the Constitution they claim as their authority. But search as one may, the opinions of the Court are utterly devoid of any such attempt. The most the Court has ever offered is the statement that it has never felt its power confined by the original understanding of the document. That much is certainly true, but it is hardly a justification. Persistent invasions of territory belonging to the people and their elected representatives cannot establish an easement across territory that the Constitution assigns to the democratic process.

It is not obvious what, if anything, can be done to bring the American judiciary back to legitimacy in a polity whose basic character is supposed to be democratic. It was once argued that a wayward Court would be corrected by professional criticism. The bar, however, is largely uninterested and academic constitutional commentary is largely intellectually corrupt.

Perhaps there is no remedy for judicial activism, perhaps a preference for immediate victories and short-term gratification of desires is characteristic of the spirit of our times. The public does seem ready to jettison long-term safeguards and the benefits of process for the short-term satisfaction of desires. That is always and everywhere the human temptation. But it is precisely that temptation that a constitution and its judicial spokesmen are supposed to protect us against. Constitutions speak for permanent values and judges are supposed to give those values voice. Instead, representatives of our judiciary are all too often, and increasingly, exemplars of disrespect for the rule of law. That situation is inconsistent with the survival of the culture that has for so long sustained American freedom and well-being. The example of lawless courts teaches a lesson of disrespect for process to all other actors in that system, the lesson that winning outside the rules is legitimate, and that political victory is the only virtue.

Born in Europe, central to the American founding, and fundamental to Western civilization, the ideal of the rule of law no longer commands much more than verbal allegiance. If prophecies of what the Court will do in fact is the meaning of law, then, in cultural matters the law may be predicted by the known personal inclinations of the Justices, nothing more pretentious. That is not the rule of law; it is the rule of judges. It would have been unthinkable until recently that so many areas of our national life would be controlled by judges. What is today unthinkable may well become not only thinkable but also actual in the next half century.

The liberal mindset refuses to recognize that real institutions can never approximate their ideal institutions. The pursuit of the ideal necessarily proceeds by and teaches an abstract, universalistic style of reasoning and legal argument. It leads to an incessant harping on rights that impoverishes political, cultural, and legal discourse. Universalistic rhetoric teaches disrespect for the actual institutions of the nation. Those institutions slow change, allow compromise, tame absolutisms, and thus embody inconsistencies that are, on balance, wholesome. They work, in short, to do things, albeit democratically and therefore messily, that abstract generalizations about the just society bring into contempt.

A Court that in one context after another lays down general principles of emancipation commends that principle to public attention and imitation and thus affects legislative opinion. Many people assume that what is legal is also moral, and they are all too likely to believe that what has been declared unconstitutional is immoral. Resistance to judicial imperialism in the name of the Constitution itself comes to be seen as immoral.

Writing last year in The Wall Street Journal, Charles Murray reflected on Arnold Toynbee’s thesis about the decline of civilizations. One reliable sign of decline, Toynbee suggested, was when elites began to imitate those at the bottom of society. In robust societies, those at the bottom tend to imitate “their betters”—a phrase whose departure from common usage betokens the degradation Toynbee prophesied. One does not have to look far to see the vulgarization of the elities in contemporary American society. There is no more elite institution in America than the Supreme Court of the United States. The sampling of cases discussed here suggests that the Court is ahead of the general public in approving, and to a degree enforcing, the vulgarization or proletarianization of our culture.

Yet it is precisely that for which the Court is most admired by the intelligentsia and in our law schools. The names of Warren, Douglas, and Brennan are enshrined in the liberal pantheon. Justices who performed their duties more faithfully are often less well-known or even almost entirely forgotten. The career of Chief Justice Morrison Waite is a case in point. Probably not one in twenty law professors and not one in a hundred lawyers even recognizes his name. Yet Professor Felix Frankfurter, in praising Waite, identified the characteristic judicial sin: “When dealing with such large conceptions as the rights and duties of property, judges lacking some governing directions are easily lost in the fog of abstraction.” That may be even more true today as the Court multiplies vaguely defined rights.

Frankfurter said that Waite has become

a dim figure in constitutional history because his opinions are not delectable reading… . But the limited appeal of his opinions is due in part to something else—to the fulfillment of one of the greatest duties of a judge, the duty not to enlarge his authority… . The distinction between those who are makers of policy and those concerned solely with questions [of the Constitution’s allocations] of ultimate power probably marks the deepest cleavage among the men who have sat on the Supreme Bench… . The conception of significant achievement on the Supreme Court has been too much identified with largeness of utterance, and too little governed by inquiry into the extent to which judges have fulfilled their professed role in the American constitutional system.

Unless it takes its law from the original understanding of the Constitution’s principles, the Court will continue to be an adversary to democratic government and to the morality of our traditional culture.

Robert Bork isRobert H. Bork (1927–2012) was an American jurist and legal scholar. 


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This article originally appeared in The New Criterion, Volume 20 May 2002, on page 4

Copyright © 2014 The New Criterion | www.newcriterion.com

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